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The Texas two-step and the Voting Rights Act

September 3, 2014 by Scott Bomboy


The Justice Department and the state of Texas are tangling in two separate court cases that could determine how much of the Voting Rights Act is still enforceable.


University_at_Buffalo_voting_booth-450x300Last year, the United States Supreme Court moved to narrow the scope of the historic act, passed in 1965 as a watershed moment in the civil rights movement.


The Act in its original form guaranteed the voting rights of minorities under the 14th and 15th Amendments, including a provision called Section 5 that required states with a history of discrimination to get federal government approval before changing their election laws.


In 2013, the Supreme Court decided in Shelby County v. Holder that the formula used to decide which states had historically discriminated against voters was unconstitutional, and it asked Congress to devise a new coverage formula.


The ruling effectively allowed nine states (mostly in the South) to change their election laws without federal approval, since there was little expectation that Congress could agree on a new coverage formula in the near future.


But the Obama administration and the Justice Department, under Attorney General Eric Holder, vowed to use other parts of the Voting Rights Act to press its case where it believed voter discrimination existed.


In Texas, the Justice Department is pursuing two federal court actions: one in San Antonio and the other in Corpus Christi.


The case in U.S. District Court of the Western District of Texas (based in in San Antonio) is called Perez v. Perry and it started in 2011 in a dispute over the legality of voter redistricting. Testimony recently concluded in the second part of the trial, amid claims that Texas state lawmakers drew maps for voting districts that discriminated against minority voters.


The plaintiffs hope they can invoke another part of the Voting Rights Act, known as Section 2, to conclusively prove to a three-judge panel that Texas officials intended to discriminate against minorities. Section 2 prohibits voting practices that discriminate on the basis of race, color, or membership in a language minority group.


The Section 2 violation would allow the federal court to put Texas back on the list of states that need federal approval before making any election law changes, using Section 3 of the Voting Rights Act.


Lawyers for Texas Attorney General Greg Abbott said Republican lawmakers made “a good effort” in 2011 to comply with the Voting Rights Act, and discrimination wasn’t a factor in drawing the maps.


The trial in Corpus Christi started on Tuesday is called Veasey v. Perry, and it is being held in the U.S. District Court for the Southern District of Texas.


The issue in this case is the validity of the Texas voter identification law. Voter ID laws received a lot of publicity during the 2012 general election nationally.


Proponents of voter ID laws argue they are needed to prevent voter fraud and they aren’t intrusive or discriminatory; opponents claim voter ID laws discriminate because the laws require minorities to go through difficult steps to obtain an ID and the burden is a modern-day equivalent of the dreaded poll tax.


In late June 2013, Congressman Marc Veasey sued Texas Governor Rick Perry after Perry stated that the Texas voter ID law could take effect immediately after the Supreme Court’s Shelby County decision was announced.


The GOP-dominated Texas legislature had passed the voter ID law in 2011, but a federal court in 2012 enjoined the law’s enforcement, denying pre-clearance under the law because it believed minorities and the poor would be denied access to the polls.


U.S. District Judge Nelva Gonzales Ramos is hearing arguments in the current case, and the judge’s could also set a precedent where Texas is put back on the pre-clearance list, despite the Supreme Court’s ruling in the Shelby County case in 2013.


Governor Perry has called the voter ID argument pressed by the Justice Department an “end-run around the Supreme Court.” And state Republicans believe a large majority of Texans are in favor of the voter ID law.


Opponents of the Texas voted ID law argue it clearly violates Section 2 of the Voting Rights Act.


“Texas’ photo ID law could prevent hundreds of thousands of eligible voters from voting, and it hits minorities the hardest,” said Myrna Pérez, deputy director of the Democracy Program at the Brennan Center, in a statement. “We have already seen problems in low turnout races. The court was right to block this law in 2012, and nothing has changed since then. We hope this court will stand up for voters and ensure elections remain free, fair, and accessible for all eligible citizens.”


The Brennan Center says lawsuits are ongoing in seven states, including Texas, about photo ID requirements and other voter registration issues.


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